[2014] KEHC 1826 (KLR)
The court found that the plaintiff had failed to take any steps to prosecute the suit for four and a half years since the last hearing date. The delay was deemed inordinate and unjustified, particularly as the plaintiff had continued to benefit from injunctive orders granted by the court. The court held that it is...
Source-derived case information.
- Citation
- [2014] KEHC 1826 (KLR)
- Parties
- Plaintiff: Mary Mwalla Kisasa & 6 Others; Defendant: GAPCO (K) Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 329 of 2009
- Procedural Posture
- Environment and Land Case / Ruling on Application to Dismiss for Want of Prosecution
- Outcome
- suit dismissed for want of prosecution
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Injunctive Orders, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Mwalla Kisasa & 6 Others
Plaintiff
GAPCO (K) Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Dismiss for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to inordinate delay by the plaintiff.
- 2 Whether the delay in prosecuting the case was justified or satisfactorily explained.
Ratio Decidendi
The court found that the plaintiff had failed to take any steps to prosecute the suit for four and a half years since the last hearing date. The delay was deemed inordinate and unjustified, particularly as the plaintiff had continued to benefit from injunctive orders granted by the court. The court held that it is the plaintiff's responsibility to move the case forward and that the failure to do so, without satisfactory explanation, warranted dismissal of the suit for want of prosecution. The court therefore dismissed the suit, finding no justification for the delay and no satisfactory explanation provided by the plaintiff.
Court Disposition
suit dismissed for want of prosecution
Orders
- The suit is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
DRAFT
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ENVIRONMENT AND LAND CASE NO. 329 OF 2009 (OS)
MARY MWALLA KISASA & 6 OTHERS..................................PLAINTIFFS
- V E R S U S -
GAPCO (K) LIMITED.................................................................DEFENDANT
RULING
[1] The applicant brings this application to dismiss the suit filed herein for want of prosecution among other reasons stated on the motion dated 4th June 2014.
[2] The applicants main reasons for the application is that the delay in fixing this case for hearing has been inordinate. The applicant argues that the last time this case came up for hearing was on 28th May 2010. That a delay of 4½ years is very inordinate more so in a suit where injunctive orders were granted. The respondent in answering this compliant have stated that, directions were not given by the Deputy Registrar that any party to a suit can set the suit down for hearing and that the defendant has contributed to the delay. The plaintiff must take responsibility of fixing his case for hearing. He cannot sit back and expect the defendant to do so for him.
[3] InCentury Oil Trading Company Limited v Gerald Mwaniki Mbogoand another [2004] eKLR the Court said it is the duty of the plaintiff to get on with the case also see, ELC NO. 78 of 2009(OS) Zephania Gichure Ndungu v Rwaikaniba Rwathia Trading Co. Ltd., Sabastian Muimu Kangatta v Capital Markets Authority 2014 eKLR.
I think a four and half year of inaction is inordinate delay. The plaintiff has sat back and enjoyed the injunctive orders granted by the court on 18th September 2009. There is no justification for this delay. It has not been satisfactorily explained. I agree with the applicant that the delay is inordinate and the suit should be dismissed. I dismiss it with no order as to costs. Having dismissed on that score I need not address myself on all the other issues raised by the parties.
Dated and delivered in open court at Mombasa this 30th day of October 2014.
S. MUKUNYA
JUDGE
30. 10. 2014
In the presence of:
Bosire advocate for the plaintiff
Nyange advocate for Isaac Onyango for the defendant